the same and refused tó deliver the negro woman. The defendant then offered to prove, that the plaintiff had the character of a cruel man to negroes, and that he was unfit to have any control over them. This was objected to by the plaintiff and rejected by the Court. The defendant then offered to prove, that, before this hiring, the defendant had said to the plaintiff, that he should never have any negroes, over which she had any control-,alleging as a reason that he was a cruel man, that she' was afraid he would kill them and that he was poor and1 unable to feed them. The plaintiff objected, but the testimony was received. The witness stated that twelve months before, at the hiring of these negroes by Nicholas-Arrington, the defendant told the plaintiff he should never hire any negroes that she had the management of, that he was a cruel man to slaves and that she would be afraid that he would kill them, and that he would not give them enough to eat; and that, at another time, she told the plaintiff-he should not have any negroes she had the control off It was furthermore in evidence, on the part of the defendant, that, a few minutes before the hiring commenced, the witness heard the defendant say to the plaintiff, he should not pester her about the negroes, that' she intended to take all the women herself -, that immediately after the woman was knocked ©if, the defendant declared that the plaintiff should not have the woman, assigning as a reason that he was a*cruel man to negroes* The Court charged the jury, that, if the defendant employed Griffin to cry the property, as her agent, without informing him, that he was not to cry the bid of the plain* tiff or without making that known, when the negro- was put up, and the plaintiff was the last and highest bidder, and the property was knocked off to him, that the act of the crier was the act of the defendant, and that his assent was her assent; that the contract of hiring was complele, provided the hirer tendered a good and sufficient bond for the hire, and this was a question for them ; that, if the defendant had told the crier not to cry the plaintiff’s bid, she had a right to do so, and if the crier had, notwithstanding, cried his bid and knocked off the property to him, she would not be bound by it, although he professed to act as her agent; that, although'she had informed the plaintiff before this hiring, he should never hire any ne-groes put under her charge, or, if just before the hiring out, she said to him he should not have any of the negroes and she afterwards permitted the hiring to go on and the negro woman was knocked off to him, it was too late, after the negro was knocked off, to say, that he should not have her; and if the plaintiff tendered a good bond agreeably to the terms of hiring and she refused to deliver the woman, the plaintiff was entitled to recover nominal damages. Under these instructions, the jury found a verdict for the plaintiff. Rule for a new trial for misdirection. Rule discharged and the defendant appealed to the Supreme Court.

First — The terms of a hiring having been read from a paper at the time and place of hiring, can parol evidence be given of those terms without the production of, or notice to produce, the paper ?

It is submitted that this is not of that kind of written instruments, which the rules of evidence require the production' of, or notice to produce, before their contents can be' spoken of or explained by parol. There is no evidence, that it was signed by any one — it was a mere notice to the public of the terms of hiring — and amounted to nothing more than a mere memorandum to guide or assist the memory of the person, who announced the terms. It cannot claim as high a character as a letter^ giving notice of the dishonor of a Bill of Exchange, to an Endorser. This Court has decided that “the contents of such letter may be proved by parol without notice to produce the original.” Faribault v. Ely, 2 Dev. 67. Nor does- it come as near within the rule of Evidence as a paper, from which a demand is read aloud in the presence of a defendant, before suit brought. Tide decision of this Court in Black v. Ray, 1 Dev. & Bat. 334.

Second — Was the Evidence as to the plaintiff’s cruelty to negroes properly rejected ?

It is submitted, that it was entirely irrelevant to the issue, and that however cruel the plaintiff may have been considered, it had no- bearing on the question whether there was a contract of hiring at the time specified, made according to law, between the plaintiff and the defendant.- Such, an examination was only calculated “ to prejudice and mislead the jury.”

Third — It is- submitted that there was a- contract of hiring.

The auctioneer is the agent of his employer and binds that employer on “ knocking down his hammer,” provided he has not instructions to the contrary.

“ A bidding at an auction may be retracted before the hammer is down. Every bidding is nothing more than, an offer on one side, and which is not binding on either side, until it is assented to, and that assent is signified on. the part of the seller by knocking down the hammer.” Kent Com, 2 vol. 537.